13th October 2023,Mumbai: A Complex Legal Battle Unfolds
The Supreme Court recently took on a highly sensitive and complex case involving a 27-year-old woman who has requested an abortion during the 26th week of her pregnancy. The woman, a mother of two, approached the top court earlier this month, citing her unawareness of her third pregnancy due to a disorder. She also suffers from postpartum depression and faces challenging financial conditions.
Court Calls for a Comprehensive Medical Report
A three-judge bench led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, along with justices JB Pardiwala and Manoj Misra, called for a fresh medical report to assess the woman’s health and the potential impact of her medications on the pregnancy. The court expressed concerns about the accuracy and completeness of the woman’s medical prescriptions, highlighting the absence of a proper diagnosis. The need for a comprehensive report from a panel of doctors at the All India Institute of Medical Sciences (AIIMS) was deemed necessary to make an informed decision.
Balancing the Rights of the Woman and the Unborn Child
In a previous hearing, the court had urged the woman to reconsider her plea for immediate abortion, emphasizing the importance of considering the rights of the unborn child. The legal battle highlights the delicate balance between a woman’s autonomy in pregnancy-related decisions and the rights of the unborn child, especially in cases of abortion.
Divergent Opinions within the Judiciary
This case has been marked by divergent opinions within the judiciary. Initially, a two-judge bench comprising female judges delivered a split verdict on the woman’s request for an abortion. One judge advocated for the woman’s right to make the decision, while the other expressed reservations about stopping the “heartbeat of a foetus that has life.” This divergence of views led to the formation of the current three-judge bench.
Legal Regime and Abortion Laws in India
The Union government, represented by the additional solicitor general, emphasized the legal regime in India, stating that abortion beyond 24 weeks is generally not permitted unless there are substantial threats to the woman’s life or significant foetal abnormalities. India’s Medical Termination of Pregnancy Act allows all women to abort up to 20 weeks, with certain vulnerable categories, such as rape survivors and mentally incapacitated women, having the option to terminate up to 24 weeks. The law acknowledges the woman’s right to choose, but it also aims to protect the life of the unborn child.
Debate Over the Definition of Life
The court considered whether a foetus can be treated as life outside the womb, acknowledging that this can be a debatable issue. However, they concluded that the legislature has already made this determination in the context of the Medical Termination of Pregnancy Act. The law allows termination for foetal abnormality because it recognizes the challenges faced by parents and the quality of life for the child in such cases.
Incomplete Medical Prescriptions and Doubts
The court examined the woman’s medical prescriptions and raised concerns about their authenticity. The handwritten prescriptions failed to specify when she was diagnosed with postpartum depression or psychosis and did not provide adequate information about the nature of her ailments and the reasons for prescribing the medications. This raised doubts about the genuineness of the prescriptions, leading the court to request AIIMS to provide a comprehensive report.
India’s Progressive Abortion Law
The Supreme Court acknowledged India’s progressive abortion law, which has evolved to meet the changing needs of women. The law, first enacted in 1971, initially restricted abortion to 20 weeks and applied mainly to married women. However, it was amended in 2021 to allow both married and unmarried women to access safe abortion for up to 20 weeks, with provisions for later termination in cases of mental anguish, rape, assault, and health complications.
Challenges Faced by Women Seeking Safe Abortion
This case is part of a series of recent cases before the Supreme Court that highlight the challenges women face in accessing safe and legal abortions. The court has consistently emphasized women’s rights to reproductive and decisional autonomy. In 2022, the court ruled that unmarried women have the same rights as married women when it comes to reproductive autonomy, dignity, and privacy. In August of the same year, the court stressed the importance of swift action in cases of abortion, calling for an urgent approach to these sensitive matters.
The legal battle surrounding the woman’s request for an abortion during the 26th week of her pregnancy underscores the complexities and nuances of abortion laws and women’s rights in India. The Supreme Court’s call for a comprehensive medical report reflects its commitment to making a well-informed decision while respecting the rights of both the woman and the unborn child. This case serves as a reminder of the importance of balancing reproductive autonomy with ethical and legal considerations. The upcoming hearing on October 16 will provide further insights into this landmark case and its implications for women’s reproductive rights in India.
-by Kashvi Gala